Advice to Bill Temple-Pediani

Enquiry

• From: Bill Temple-Pediani
• Date advice given: 10 April 2015
• Enquiry type: Email

The promoter wishes to develop multi-fuel Combined Heat and Power (CHP) generating stations to serve Ebbsfleet Garden City and Dunton Garden Suburb.

The promoter enquired;

• whether a proposal for a CHP generating station with a maximum output of 90MWe electricity and 90MWe heat must fall under the Planning Act 2008 Nationally Significant Infrastructure Project (NSIP) regime.

• whether such a project could proceed by a separate regime.

• whether the proposal could be considered together with the local plan process.

Advice given

The Planning Act 2008 (as amended) (‘the Act’) governs the development consent process for dealing with ‘nationally significant infrastructure projects (‘NSIPs’).

The National Policy Statements (‘NPSs’) set out national policy for NSIPs. There are six NPSs for energy infrastructure which have effect on the recommendations and decisions on applications for energy developments that fall within their scope.

Under Section 14(1)(a) of the Act the construction or extension of a generating station is defined as an NSIP. Section 15 of the Act clarifies that the construction or extension of a generating station is within section 14(1)(a) only if the generating station is or (when constructed or extended) is expected to be, amongst other things, a generating station that is in England or Wales, not an offshore generating station, and its capacity is more than 50 megawatts.

Section 31 makes clear that consent under the Act is required for development that is or forms part of an NSIP. There is no mechanism under the Act to exempt projects from the NSIP process if they meet the relevant thresholds. Therefore a generating station that falls within s14 and s15 of the Act could not proceed by another process such as the Electricity Act 1989 consenting regime.

The Planning Act 2008 uses the term ‘generating station’, which does not distinguish between multi-fuel combined heat and power (‘CHP’) generating stations and other generating stations. Nonetheless, the energy NPSs EN-1 and EN-2 make clear that CHP development does fall under the NSIP regime.

In your email of 20 March you outline what you believe to be an alternative path to the NSIP process, which I summarise below:

“The portion of the project which will generate 60MWe in pure electricity mode may be presented initially to local planners for consent as generating 49MWe electricity and 12MWth heat […]. [If] this project has secured planning consent, [..] an additional planning application for a 60MWe gas turbine generator [will also be] presented to local planners as generating 49MWe electricity and 12MWth heat [ to achieve a total of] 98MWe electricity and 24MWth heat generating capacity[…]”.

As noted above, the construction of a generating station is an NSIP if, in part, its capacity is more than 50 megawatts. The Planning Act 2008 does not define ‘capacity’, but current practice is to use ‘total installed capacity’. The Renewable Order 2009 defines ‘total installed capacity’ in relation to a generating station as the maximum capacity at which the station could be operated for a sustained period without causing damage to it (assuming the source of power used by it to generate electricity was available to it without interruption). Therefore you are advised to seek your own legal advice on whether your proposal to differentiate “49MWe electricity” and “12MWth heat” would conform to the relevant definition of ‘capacity’ to fall below the 50 megawatts threshold.

Notwithstanding the above, please note that development falls under the NSIP regime if it involves the construction or extension of a generating station. Therefore the theoretical extension of a generating station with a capacity of 49 megawatts by a further 49 megawatts would exceed the 50 megawatts threshold.

Regarding the relationship with the garden city proposal, your overarching concern appears to be that the Planning Act 2008 process is separate to the Town & Country Planning Act 1990 regime, yet you believe that the proposed generating station and Garden City Plan have a symbiotic relationship and so should be considered together. I hope my understanding is correct and although I appreciate that in the assessment of plans and development consent applications each proposal will have regard to the other, for the reasons given above, a generating station with a capacity of more than 50 megawatts (and meeting all other relevant thresholds) must be dealt with by the Planning Act 2008 process irrespective of its relationship to other development outside of the NSIP regime.

If compulsory acquisition forms part of an application for development consent then there may be the need for information regarding enabling development to make a compelling case in the public interest. If you establish that development consent is required for the CHP proposal, then we may be able to provide further advice on what this might mean in practice.